EPA codifies limits on title V review of new source permits

WASHINGTON, Sept 25 — The U.S. Environmental Protection Agency (EPA) on Friday published a final rule saying it will not use title V operating permits to reevaluate New Source Review (NSR) preconstruction permits that were issued with public notice, an opportunity to comment and judicial review.^1,2

The rule writes into regulation an approach the agency says it has applied case by case since 2017.^1,2 It changes the definition of "applicable requirement" in 40 CFR parts 70 and 71, the regulations for state and federal operating permit programs.¹

The EPA said the change allows it to apply the approach nationwide.^1,2 It said it also resolves issues stemming from conflicting court decisions from the U.S. Court of Appeals for the Tenth Circuit and the Fifth Circuit.^1,2

The agency said title V will still be used to review NSR issues in limited situations.^1,2 These include projects built without a preconstruction permit, permits issued without public notice and comment, and areas where the two programs overlap, such as monitoring.¹

"Put simply, title V is a catch-all, not a cure-all," the EPA said in the rule.^1,2

The rule also states that the Clean Air Act's general duty to prevent accidental releases of hazardous substances, under section 112(r)(1), is not an "applicable requirement" for title V purposes.^1,2

According to the rule, between 1997 and 2017 the EPA denied between 75% and 80% of petition claims that raised NSR issues.^1,2 The agency said it does not expect the rule to materially affect air quality or public health.^1,2

The rule takes effect on Oct 26, 2026.¹ Petitions for judicial review must be filed in the U.S. Court of Appeals for the District of Columbia Circuit within 60 days of publication.^1,2

The EPA proposed the rule on Jan 9, 2024.^1,2 The agency removed a proposed change on "enhanced NSR" from the final rule.^1,2